The Illinois Pollution Control Board (Board) regulation (35 Ill. Adm. Code, Section 601.105) states that:
"Water Main" means any pipe for the purpose of distributing potable water which serves or is accessible to more than one property, dwelling, or rental unit, and is exterior to buildings. (Emphasis added)
What does accessible mean?
Accessible means legally accessible. In other words, whatever means are necessary to ensure that a water line cannot be accessed by more than one property, dwelling, or rental unit must be taken. In order to be considered a service line by the Illinois Environmental Protection Agency (“Illinois EPA”), a water line must only be connected to one property, dwelling, or rental unit. If a service line is at any time connected to more than one property, dwelling, or rental unit, the Illinois EPA will consider the line to be a water main that must be permitted by the Illinois EPA and constructed, in accordance with the Illinois Environmental Protection Act (Act), Board regulations and Illinois EPA regulations.
What is acceptable?
There are two alternatives to satisfy the technical and legal requirements: 1) a water service line crossing multiple property boundaries that has recorded easements on property deeds such that the water service line may only be used by one property, dwelling, or rental unit; or 2) a permitted water main. "Easements" are basically property restrictions so the conveyance act has to be followed. An attorney will need to develop an easement ordinance between property owners. Some easement ordinances include the public water supply. This is not intended to be a comprehensive list of what should be included but, at minimum, recorded easements:
- Must exist between all property owners where the proposed water line will transect;
- Must be in writing;
- Must contain a description of the land;
- Must have consideration;
- Must restrict any future connection to the proposed and henceforth constructed water service line;
- Must be adequate in size and breadth to allow for future maintenance of the water service piping; and
- Must be appropriately recorded in the county of record.
Additionally, notarized copies of these easements must then be supplied to the appropriate water supply officials as documentation that appropriate measures have been taken to completely restrict future access to the water service in question. Further, this documentation should then be maintained such that it is available for future inspection as needed by the Illinois EPA.
What is the Illinois EPA’s preferred option?
The Illinois EPA prefers that all water lines that physically cross multiple property boundaries be treated as water mains. This affords a higher degree of protection to community water suppliers through infrastructure ownership and ultimately the Illinois EPA’s permit review process. In addition, this option negates the possibility of future disputes over water access property transfers occur.
What will the Illinois EPA position be if another property, dwelling, or rental unit connects to a service line?
Should this occur, the water service line would become an un-permitted water main. This violation would be pursued by the Illinois EPA. In other words, in the event that more than one property, dwelling, or rental unit connects to a water service line, a permit violation has occurred. The Illinois EPA will take action to, at a minimum, require the removal of the additional connections to the water supply or obtain a water main permit and may ultimately seek monetary penalties.
Does the Illinois EPA prohibit water service lines from crossing multiple property boundaries?
The Illinois EPA cannot prohibit property owners from entering easements for installation of service lines across other properties. However, the Illinois EPA does regulate CWSs and will take enforcement actions on illegally installed water mains (connections to the distribution system that are confirmed to cross multiple properties without recorded easements that ensure the water service line is used by only one property, dwelling, or rental unit).
Whose responsibility is it to verify that the owner of a water service line crossing multiple property boundaries has secured legally binding easements to install and operate a water line?
The ultimate responsibility for protecting the water supply lies with the community water supplier. Since the Illinois EPA has no statutory authority to prohibit water service lines from crossing multiple properties, the CWS must verify binding easements are obtained and maintenance agreements reached in advance of connection to the distribution system. The water supplier must obtain sufficient documentation resolving disputes arising from actions it has taken or allowed. In the future, a CWS allowing connection of a service line to its distribution system may need to demonstrate that it has not allowed construction of an un-permitted water main or a threat to the safety if its water supply.
What are the risks of allowing service lines that cross multiple properties?
The assurance of safe and adequate water is the responsibility of the CWS. The Illinois EPA does not review water service line plans and has no authority to preclude the installation of service lines to a single property, dwelling, or rental unit. Property owners served by inadequately designed, undersized water service lines have installed booster pumps or other devices that can cause contamination of the potable water supply. Without proper controls, these installations may pose a significant liability to the water supplier and property owner.
What has been the Illinois EPA’s experience with water service lines that cross multiple property boundaries?
There is a tendency for these installations to result in a multitude of problems. This stems from the following facts:
- Properties change hands and deed restrictions are overlooked. This can result in calls to the Illinois EPA and CWS regarding property access (destruction) and other civil conflicts;
- The desire to be a “good neighbor” often results in illegal connections that in turn result in loss of water pressure or water quality problems. These ultimately end with complaints to the Illinois EPA. Upon receipt and investigation of these complaints, enforcement actions often result. In addition, if localized pressure issues result, the Illinois EPA normally responds by placing CWSs on Critical Review or Restricted Status. Receipt of either of these restrictions may limit subsequent growth of the distribution system until the problem is resolved; and
- Rural CWSs often do not have frequent contact with the remote locations involved with service line connections crossing multiple property boundaries. These rural water systems often do not have sufficient staff to conduct surveillance of the water distribution systems. Hence, new construction may go undetected resulting in an increased risk of illegal connections to water services. (The opportunity for these connections is increased when large properties are crossed.)